Lessee of Ludlow's Heirs v. Park.

defendant's counsel, and the court referred to them as illustrative of some point of the case.

None of the authorities cited would warrant the court in applying the doctrine of misrecitals to this case. There can be no propriety in permitting the defendant to set up a power in the administrators, which they did not claim in themselves, but which they in fact disclaimed, by obtaining the order of 1810, and reciting it as the authority under which they made the sale to the defendant.

2. Admitting that the recitals of the deed did not conclude the defendant, it is contended, in the second place, that the property in dispute was excepted from the operation of the order of May, 1804. The order excepts and reserves the farm and improved lands near Cincinnati, together with the houses and lots in Cincinnati.

The lot in controversy, as was shown by the plat of the city, recorded in 1802, is one of three out-lots of twenty-seven acres as designated in the original plan of the city. The deed from J. C. Symmes to Ludlow for the lot includes it with other lots of the city. In the deed of the administrators to the defendant, it is described as the lot in the southwest corner of Cincinnati.

The construction given by the court to this reservation, in the case of Ludlow's Heirs v. C. & J. Johnson, 3 Ohio, 553, is decisive of this point. The terms of the reservation must be construed as if employed in a grant. A grant of all the lots in Cincinnati would unquestionably include all the lots presented on the face of the map of Cincinnati without regard to the quantity each might contain. It would be a matter of no consequence whether the lots contained one, or one hundred acres; if they were included in the plat of the city, and so made matter of record, they were properly and strictly speaking lots of Cincinnati, and within the fair and proper reading of the reservation. But if there should be, by possibility, a doubt raised on this point of the reservation, none 17] could exist on the other branch, which reserved the improved lands near Cincinnati. There was full, clear, and uncontroverted proof to the jury, that a greater part of the lot had been under cultivation from 1795; and that at the time the order was granted the lot was in the possession of one Richardson, who had leased it of Ludlow in his lifetime, and occupied it for ordinary farming purposes. There was no effort made to contradict this testimony, because none could be made successfully.

Lessee of Ludlow's Heirs v. Park.

3. The order of 1804 was inoperative, because the act of 1795, "for the settlement of intestates' estates," on which it was founded, was repealed. This act, it will be contended, was repealed, first, by the act of February, 1805, "defining the duties of executors and administrators on wills and intestates' estates;" and secondly, that it was repealed by the act of February 22, 1805, repealing all the laws of the territory passed or adopted prior to September 1,

1799.

The burden of the inquiry, in the examination of this question, is to ascertain what was the intention of the legislature touching the subject; and in making this inquiry, a careful review of the early legislation of the state seems necessary. The legislature of 1804-5 undertook to revise and embody into one all the statutes of the territory and state then in force relative to each particular subject of legislation. They passed a new execution law, and incorporated into it all of the provisions of former laws which they wished to retain. They added new provisions, however, which serve to characterize what was then considered the true policy of the state relative to the sale of lands for the payment of debts.

Reason and justice require that these new provisions should be made alike applicable to the whole state and to each individual, unless there should appear something in the statute-book indicative of a different intention in the legislature. Such intention, however, does not appear, upon a fair reading of that statute, taken by itself or in connection with other acts of that session. Neither individually nor collectively do they admit of a construction that would work injustice or create invidious distinction. The protective character of the newly-incorporated provisions seems to have been demanded by the exigenc.es of the country. The state then *was, and has remained agricultural in the main, and [18 the wisdom of successive legislatures has continued in force a system which looks to the protection of the soil (the basis of the wealth and prosperity of the state) from unwarranted sacrifice. No one can look to the legislation of Ohio without seeing that this subject has never been lost sight of since the earliest stages of the government; and, with the light of experience before them, no one will question the wisdom that introduced and sustained such a system.

The intention of the legislature to revise and reduce into one act the various acts relative to the subject of administrators, their

Lessee of Ludlow's Heirs v. Park.

powers, duties, and responsibilities, is clearly manifested in the act of February 1, 1805, "entitled an act defining the duties of executors and administrators on wills and intestates' estates." If, then, this leading object of the legislature is kept in view, there can be no difficulty in understanding what should be the construction of the act of February 1, 1805. The leading object of that act was the settlement of intestates' estates. It points out the powers and duties of administrators from the granting of the administration to the final settlement of his accounts; but in no part of the statute is it intimated that their powers should be extended to the real estate. The general jurisdiction and power of the court of common pleas could not reach the land through the agency of administrators.

If they possessed the power to order a sale, it was in virtue of some act of legislation. The act of 1795 was the only one which had ever conferred that power; and that act, coming within the spirit and letter of the repealing clause of the act of February 1, 1805, the power derived under it ceased with the law itself. That it was the intention of the legislature to define the whole duties and powers of administrators, and to limit them to the personal estate, can scarcely admit of a reasonable doubt. If such, then, was their intention, and the language of the statute will warrant no other conclusion, the repealing clause would stand a mere nullity if the act of 1795 should be considered unrepealed. The repealing clause repeals all laws on the same subject. The leading objects of both laws was the same-the settlement of intestates' estates. The act of 1795 pointed out the duties and powers of ad19] ministrators relative to the real estate, when there was a deficit in the personal, for the payment of debts, etc. The act of 1805 stopped short of the act of 1795, and limited them to the personal estate, and to guard against their interference with the land. of an intestate, they repealed all the laws on the same subject, leaving the act of 1805 as the only law for the future.

The intention of the enacting power can only be fairly drawn from the language they employ to express their intention. Had they intended, when enacting the law of 1805, to give the power to sell the real estate, it is somewhat strange that they should have used no language from which such intention could be reasonably deduced. While legislating so directly on the subject; while enacting a general revising and consolidating law, the very title of which

Lessee of Ludlow's Heirs v. Park.

included the subject of the law of 1795, it seems to be a matter of impossibility that they should have intended such a power to exist for the future, and yet use no word or sentence indicative of such intention.

But aside from the repealing clause, I contend that the act of 1795 would have ceased after the passage of the act of 1805, and this, too, upon a principle that rests on a solid foundation of law as well as common sense. It is a well-settled rule of law that a subsequent statute, revising the subject matter of a former statute, and evidently intended as a substitute for it, although it contains no express words to that effect, must operate to repeal the former. Bartlett v. King, 12 Mass. 345.

I do not make this point merely for the purpose of swelling the number of points in the cause, but because I think it applicable to the case, and because it stands upon sound legal principles, and is supported by the best authority. Its application to this case will be made manifest by referring again to the act of 1805, taken in conjunction with the two other acts of that session bearing on the same subject. The one directing the manner of executing, proving, and recording wills and codicils, vol. iii., 173; the other directing the distribution of insolvent estates, vol. iii., 182. These three laws remained in force till June, 1808, when the subject matter of each was embodied into one law, and for the first time under the state government the power to sell lands by administrators was added. These three laws were then held and regarded [20 as the only laws in force on the subject, and they are repealed by express reference to each. It can not be said that the legislature intended that the act of 1795 should stand in connection with these three laws as parts of an entire system, and that it remained in force with them till 1808, because at this same session they passed the general repealing law (which will be hereafter considered) that repealed the act of 1795. Upon the whole, therefore, I contend that the act of 1795 was repealed by the act of February 1, 1805, and that the order of May, 1804, ceased to have any operative effect after June 1, 1805.

In the second place, I contend that the act of 1795 was repealed by the general repealing law of February 22, 1805, vol. iii., 294. Section 1 of this act repeals all the laws adopted by the governor and judges prior to September 1, 1799. This court, in the case of Ludlow's Heirs v. C. & J. Johnson, 3 Ohio, 553, have decided that

Lessee of Ludlow's Heirs v. Park.

this law repealed the act of 1795, and that from this time to June 1, 1808, there was no law authorizing administrators to sell the land of an intestate.

This opinion of the court is decisive of the case under consideration, so far as it depends on the general repealing law, unless there is something in the saving clause to vary the case. By the saving clause it is provided "that nothing in this act contained shall be construed so as to effect, in any manner, any suit or prosecution now pending and undetermined; but the same shall be carried on to judgment and execution, agreeable to the provisions of any of the said laws, under which the suit or prosecution may have been commenced, and the practice of the courts."

Upon this cause the defendant's counsel rely to support the order of May, 1804, as a living, subsisting power, under and in virtue of which the deed to the defendant can be sustained. They contend that the order of 1804, when once granted, was properly a suit or prosecution within the meaning of the terms of the saving clause. In deciding this question we must again look for the intention of the legislature; and in conducting this inquiry, how shall their language be construed? Shall we apply to it the ordinary rules of interpretation? Shall we give to the words "suit and prosecution," which were to be carried on to final judg21] ment and execution, their usual import when used in statutes; or shall their meaning be strained and molded to suit the circumstances of a desperate case? Does the case call for a deviation from the fixed and settled rules of construction? If it does not, the language of the clause furnishes a conclusive answer to the attempt that is made to extend its meaning to embrace the unexecuted and extinguished order of May, 1804. What are the facts? The administrators obtained an order to sell lands while the act of 1795 was in force. Under that order a part of the estate was sold. In 1805 the law was repealed. In 1808 the legis lature passed a law authorizing administrators to sell lands under certain restrictions and on certain conditions. In 1810, while this law is in full force and recognized, and regarded as the rule of property, the administrators sold a part of the real estate. The heirs contest the validity of the sale, and allege that it was in direct violation of the laws of the land. How are they answered? Is it by showing that the sale was fair, bona fide, and consistent with the law under which it was made? No. They abandon the